SECTION I
Proposed considerations
SECTION II
Consistency/predictability
A case study
The migration experience
Abuse of review process
Previous Council consideration
Resource-related issues
The executive perspective
The judicial perspective
Previous Council consideration
Contributing factors and responses
SECTION III
Nature of the decision
Policy and policy decisionsDecisions
related to the administration of justice
Decisions where there are ongoing relationships
Legislative decisions
Decisions made in urgent or emergency contexts
SECTION IV
Nature of the decision-maker
Status of the decision-maker
Expert decision-makers
Outside contractors
Government business enterprises
Decisions by certain other government bodies
SECTION V
Other
No impact on final decision
No injustice
5.1 Having regard to issues discussed in the preceding Parts of the discussion paper, the following considerations have been identified as relevant to the scope of judicial review:
· Consistency/predictability
· Resource-related issues:
Ø cost/volume;
Ø abuse of process;
· Nature of the decision:
Ø policy and polycentric issues
Ø where there are ongoing relationships
Ø legislative matters
Ø matters relating to the administration of justice; and
Ø the urgency or emergency of the circumstances.
· Nature of the decision-maker:
Ø status
Ø expertise
Ø being an outside contractor
Ø government business enterprises
Ø inter-governmental bodies; and
Ø consultative and advisory authorities dealing directly with the public.
· Other:
Ø no impact on final decision/no injustice.
· Alternative remedies available.
Discussion point 7
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Do you agree with the items included in this list? Are there items that should be added to or removed from the list? Please elaborate. |
5.2 It has been accepted that an underlying value of administrative justice is consistency in administrative decision-making[1] and that there is a potential for inconsistencies to develop if limits are placed on review.
5.3 Inconsistency and unpredictability in decision-making outcomes may suggest unfairness, sometimes graphically, where there are fiscal implications associated with decisions.
5.4 It has been said in that respect that the courts had a role in the development of:
…coherent and explicable legal principles which provide administrators, the public, and their legal advisers, with clear guidelines whilst at the same time retaining sufficient flexibility to allow an appropriate balance between the public and private aspects of the public interest in the infinite variety of circumstances that come before the courts.[2]
5.5 Parts XIA (The Repatriation Medical Authority) and XIB (Specialist Medical Review Council)[3] were included in the Veterans’ Entitlements Act 1986 (the VEA) in response to concerns that the interpretation given to section 120 of the Act (reasonable hypothesis linking a veteran’s injury, disease or death with service) resulted in unmeritorious pension claims and lack of consistency in decision-making.
5.6 Impetus was afforded for the amendments to the VEA by the decision of the High Court in Bushell v Repatriation Commission where in considering what medical-scientific evidence would support a reasonable hypothesis connecting a veteran’s medical condition with service, Mason CJ, Deane and McHugh JJ said inter alia:
…the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable…But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.[4]
5.7 In an Audit Report handed down in 1992 by the Australian National Audit Office, it was observed that the approach adopted in Bushell would lead to ‘the great majority of claims being accepted.’[5] The Audit Report recommended a review of the compensation scheme for veterans and their dependents. This review was subsequently undertaken by the Veteran’s Compensation Review Committee chaired by Peter Baume.
5.8 In its 1994 report, A Fair Go, Report on Compensation for Veterans and War Widows, the Committee recommended, amongst other things, that:
An independent, Expert Medical Committee be established to resolve general medical issues and to formulate Statements of Principle for application to all decision-making.[6]
5.9 The Repatriation Medical Authority (the RMA) had its origins in this recommendation. It was proposed in the report that the Statements of Principle would have legislative authority, would guide the process of determining whether an injury was ‘predominantly war caused’ and would ensure consistent standards in decision-making.[7]
5.10 Following this report, in 1994, substantial amendments to the Veterans’ Entitlements Act were presented to Parliament, including the inclusion of Parts XIA and XIB.[8] In the explanatory memorandum to the legislation[9] it was stated that in providing for the establishment of the RMA, the intention of the new Part XIA was to ‘ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependents’.
5.11 The role of the RMA is to determine Statements of Principles (SoPs) with respect to injury, disease or death if it is of the view that sound medical-scientific evidence exists indicating a link eligible Australian Defence Force service. The SoP system is founded on the basis that a connection between service and medical condition should be supported by established epidemiological evidence accepted by the RMA, rather than by the expert medical evidence produced in an individual application for pension.[10]
5.12 Pursuant to an undertaking given by the Government of the day at the time of the passage of the 1994 legislation, and reiterated by the successor to that Government, a review was subsequently undertaken of the RMA and the SMRC. In the Report of the Review Committee[11] it was said of the SOP system that:
It provides a degree of certainty that is otherwise absent. It provides a clear direction to claimants or their representatives as to the evidence that must be gathered for the purpose of making a claim.
It overcomes the need to search for supporting medical opinion.
It reduces the range of matters that are open to be appealed which is overall beneficial not only in the public interest but in the interest of individuals.[12]
5.13 Indeed, the success of the Statement of Principles Scheme has been such that it is used as a reference framework in other compensation jurisdictions including in some overseas veterans administrations.
5.14 Consistency and predicability have also been important factors in the migration area. In relation to that legislation, there has been a particular focus on uncertainties arising from the open-ended nature of the grounds of review. In his second reading speech to the Migration Reform Act 1992, the then Immigration Minister, the Hon Gerry Hand, stated that ‘the Government wishes to make the application of the legal concepts of migration decision-making predictable’.
5.15 More recently, in his second reading speech to the Migration Legislation Amendment (Procedural Fairness) Bill 2002, the Minister for Immigration and Multicultural and Indigenous Affairs, the Hon Philip Ruddock MP, noted that one of the reasons for the inclusion in the Migration Act by the Migration Reform Act 1992 of the code of procedural fairness was to:
…replace the uncertain common law requirements of the natural justice 'hearing rule', in particular, which had previously applied to decision-makers.[13]
5.16 The Minister noted that the Bill, made it expressly clear that codes in the Migration Act 'do exhaustively state the requirements of the natural justice or procedural fairness hearing rule'.[14] This represented a response to the decision of the High Court in Miah,[15] where it was found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.
5.17 As a result of the decision in Miah[16], even where the code was followed in every respect there could still be 'uncertainty about the legal procedures which decision-makers are required to follow to make a lawful decision'.
5.18 Such developments are consistent with moves generally encouraged by the Productivity Commission for the development of performance indicators which are specific, clear and easily applied. This is seen as an aid to better decision-making across public administration.[17]
Discussion point 8
5.19 The foregoing discussion notwithstanding, the view may be taken that arguments for legislative limitation of judicial review on the basis of considerations of consistency and predicability in decision-making will not always be convincing.
5.20 As noted by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs, ‘consistency is not preferable to justice’.[18] It might also be said that consistency is not necessarily synonymous with justice. In some instances, the desire for consistency and predicability can override consideration of the implications of a decision in a particular case, and lead to decisions that are unjust.
5.21 Where practical technical expertise resides in a primary decision-making body, claims for legislative limitations on judicial review may have some basis. Indeed, in some situations, ‘review inhibitors’ such as those utilised in the veterans’ affairs area, may be thought to present an acceptable ‘limiting and limited’ solution both in the context of merits and judicial review especially in high volume cases.
5.22 As noted, establishment of the Veterans’ Affairs SoP system has been concluded to be in the public interest.[19] In so far as the SoPs relate to technical medical issues and their epidemiological connection with events of service, often many years previously, however, they do not represent the usual evidentiary issues associated with administrative decision-making.
5.23 Nevertheless, the fact that consistency and predicability are values underlying judicial review should not be overlooked. Courts have an important part to play in maintaining consistency in the interpretation of legislative provisions, particularly new provisions, and in the development of precedent.
5.24 In the face of inconsistency and unpredictability, the cost of judicial review both to government and the individual may also be a factor for consideration. This is explored in more detail below.
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Do you agree/not agree with these views? Are there other relevant considerations? Please elaborate. |
5.25 In recent times, government has tended to place particular focus on ‘abuse’ as a reason for limiting judicial review. However, what constitutes ‘abuse’ may be difficult to identify.
5.26 In his second reading speech to the Jurisdiction of Courts Legislation Amendment Act 2000, the Attorney-General said:
The object is to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies.[20]
5.27 There were also references in the debate of this legislation to the effect that:
Collateral attacks [lack] merits and are invariably only used by defendants with deep pockets.[21]
5.28 In the migration area, it has been remarked by the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock MP, that:
…litigation can be an end in itself. Given the importance attached to permanent residence in Australia, there is a high incentive for refused applicants to delay removal from Australia as long as possible. This may be done to give time for them to establish ties within the community which they may hope will yield entitlement to a visa through another pathway. The incentive to delay removal from Australia is increased if the refused applicants are enjoying privileges such as work rights and access to Medicare.[22]
5.29 Further:
One of the difficulties that we experience in this area – I think the only other area that has been likened to it is the area in relation to tax decisions – is that generally speaking when people access judicial review or administrative review they do not achieve their immediate outcome.
…what if your principal intention is to enter Australia and work here temporarily – in other words, if people are seeking access to Australia merely as a guest worker? I have to say the people who lodge asylum claims or who use the appeal system are very often people whose principal intention is to be a guest worker, who has permission to work. …if they can delay determination of decisions in relation to their status they can achieve what is in fact their principal objective – the objective of being here and being able to work for a period of time.[23]
5.30 Again in the migration area, one of the arguments used to support passage of the Migration Legislation Amendment Act (No 2) 2001, limiting class actions in the migration jurisdiction, was said to be ‘to combat the recent increase in the use of class actions…for people with no lawful authority to remain in Australia to prolong their stay and frustrate removal action’.[24]
5.31 As suggested elsewhere in this paper, similar concerns could well have been at the root of the limitations on judicial review existing in relation to the review of income tax assessments.
5.32 In 1986, in its 26th report, Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, the Council concluded that:
…it is generally only correct to describe as abuses of the Act those proceedings which are designed to delay or frustrate Commonwealth administration (in a broad sense) merely in order to gain a tactical advantage rather than to establish a genuine legal right or interest.[25]
5.33 In saying this, the Council did not consider the existence of alternative remedies in the face of high volumes of applications for judicial review to be indicative, in themselves, of abuse of the administrative system.
5.34 The Council noted further that abuse is not evidenced ‘by the mere fact that an application for an order of review has been refused’. The Council noted in this regard that ‘even unsuccessful proceedings under the Act ‘may involve real questions, whether of fact or law or both, which justifiably require adjudication and determination by a court in relation to which it is reasonable to make an application under the Act.’[26]
5.35 The Council also considered that the fact that proceedings under the AD(JR) Act may have the consequence of delaying other proceedings already in train does not, in itself, indicate an abuse of process.
5.36 In Review of the Administrative Decisions (Judicial Review) Act 1977 – Stage One, while noting that:
It would be highly undesirable if the Act were being used unduly to frustrate or impede legitimate administrative action in an attempt to obtain mere tactical advantage…[27]
the Council concluded that ‘many of the allegations about ‘abuses’ had been exaggerated’.[28]
5.37 Although it found little evidence of such abuse, the Council considered that the possibility of using the AD(JR) Act for the purpose of delay existed in relation to the ongoing proceedings of tribunals such as the Australian Broadcasting Tribunal and in an area such as taxation. However, in the end result, the Council recommended amendment to the Act to extend and clarify the Federal Court’s power to stay, or to refuse to grant an application under the AD(JR) Act as the mechanism to control abuse of power.[29]
5.38 The Council’s findings were subsequently endorsed by the Senate Legal and Constitutional Affairs Committee in its consideration of the 1986 Administrative Decisions (Judicial Review) Amendment Bill 1986.[30]
5.39 The Committee also acknowledged the view of the NSW Law Society that there was:
…great difficulty in appreciating the justification for penalising individuals who are genuinely aggrieved by Commonwealth administrative action by making it more difficult and expensive for them to bring review proceedings because of perceived abuse of the AD(JR) Act … in circumstances which are unlikely to recur. The injustice is compound[ed] by the fact that individuals or corporations with vast resources [will still be able to use other methods of judicial review]. [31]
Discussion point 9
5.40 Having regard to the preceding discussion it would seem that identification of ‘abuse’ remains difficult and subjective. For instance, in relation to the Jurisdiction of Courts Legislation Amendment Act 2000, the Government used no statistics or examples to back up its claims that judicial review was being used in collateral attacks on the criminal justice process.[32]
5.41 Obviously, identification of what constitutes an abuse of process is not necessarily reflected in the number of applications for review or in the numbers of successful (or unsuccessful) applications.
5.42 Similarly, high withdrawal rates for applications might be indicative of a desire to ensure that time limits for applications are met rather than a desire to abuse the system.
5.43 In some areas, tax and migration for instance, it may be that there are time-advantages in lodging an application for judicial review. Moreover, as stated elsewhere in this paper, the constitutional separation of powers principle makes judicial review imperative in relation to certain issues.
5.44 Undoubtedly, although there are circumstances where some people may be attempting to delay or frustrate administrative processes, there are others where they are not. In such circumstances, applicants may be resorting to judicial review because they genuinely believe that they have a grievance – that they were not afforded procedural fairness or that there was a substantive error of law made in their case, which is best dealt with by the courts.
5.45 Accordingly, the view may be taken that ‘abuse’ should not readily be relied on by government as a reason for limiting review in a particular area. By virtue of the methods they employ and their necessary focus on the case at hand, arguably, courts are better placed to identify ‘abuses’ in particular cases.
5.46 If such ‘abuse’ is presented in the form of high volumes of cases and related strains on financial and human resources, it may be something which government should respond to.
5.47 In view, however, of the fact that many applications may well be ‘genuine’, it is suggested that if it decides to limit judicial review on this basis, it is incumbent that there be an adequate alternative to judicial review.
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Do you agree/not agree with these views? Are there any other relevant considerations? Please elaborate. |
5.48 Resource-related issues cover both financial cost and cost in terms of the use of personnel, time and other resources. Concerns as to resources are often inextricably linked to claims of abuse of process and may also frequently underlie concerns as to consistency and predicability.
5.49 Concern in this area has tended to focus on the cost to government and, through government, to the public in general rather than to the individual. Overall however, a balance must be achieved between:
…on the one hand, the need to provide individuals with a means by which they may effectively obtain judicial review of the legality of administrative action and, on the other hand, the need to rationalise and ensure the proper use of existing review mechanisms, to keep costs to a minimum and to protect public authorities from unwarranted legal action.[33]
5.50 At a
1987 administrative law seminar, the then Minister for Finance,
Senator Walsh, commented that the Australian system of administrative law is
based upon the belief that ‘perfect legislation backed up by a legal system can
deliver a perfect world’ and that this:
…implicitly assumes a world of unlimited resources in which the cost of sustaining the ‘perfect’ legal system need not be, or even should not be, taken into account.[34]
5.51 The Minister also observed that ‘equity is provided for those who feel aggrieved by decisions’ but at considerable cost to taxpayers who must pay for much more complex and cumbersome administrative procedures than would otherwise be the case’.[35]
5.52 Resource-related issues were a factor alluded to by the current Attorney-General in the context of the Jurisdiction of Courts Legislation Amendment Bill 2000:
…without reducing fairness or access to justice, the expectation is that the transfer of jurisdiction [from the Federal Court] will contribute to increased efficiency, and reduction of costly delays which may otherwise result from access to court systems. [36]
5.53 Such considerations also featured in the shaping of the review regime provided for in the Public Service Act 1999. In a paper preceding the development of the scheme, it was noted that:
At present there are too many avenues of appeal, resulting in complicated and convoluted processes. The responsibility to afford public servants a right of review of employment decisions needs to be balanced against the need to reduce the costs associated with an appeals culture.[37]
5.54 In relation to migration decisions, resource concerns have attracted bipartisan support. In a submission to the Senate Legal and Constitutional Legislation Committee in its consideration of the Migration Legislation Amendment (Judicial Review) Bill 1998, former Immigration Minister, Mr Gerry Hand, said that:
Throughout my time as Minister…I was concerned with the amount of public resources consumed in judicial review processes which ultimately did not alter the situation that the person was not entitled to remain in Australia. These resources not only included the costs to the Department. They also included the use of [scarce] legal aid funds on persons with no link to Australia when Australian citizens and permanent residents were being denied legal aid for legitimate grievances.[38]
5.55 In the Explanatory Memorandum to the Migration Amendment (Judicial Review) Bill 2001, it is observed that, if they were to operate as predicted, the amendments effected by the Bill to the Migration Act would, ‘by reducing the issues to be addressed and allowing cases to be resolved more quickly, deliver substantial savings.’ [emphasis added]
5.56 In providing evidence in support of the earlier version of this legislation, the Migration Legislation (Judicial Review) Bill 1998, the Department provided evidence that the reforms were expected to deliver significant savings of up to 50% in the Department’s legal costs, once the backlog and initial challenges to the privative clause were dealt with.
5.57 Although the evaluation of resource issues is a matter of particular concern to the executive, the courts have not been oblivious to the pressures on primary decision-makers to deal with large numbers of cases with the attendant costs that that involves. Judicial consideration of such issues arises, inevitably, however, in the context of individual hearings, particularly in the context of the ground of procedural fairness.
5.58 As discussed earlier, the nature and extent of cost considerations is not generally amenable to assessment on a case by case basis. In one case, however, the High Court was prepared, having regard to the size of the administration and the volume of decision-making, to relax the requirement that decisions should be made by statutory office holders.[39] In another case, in concluding that there was no universal mandate for an oral hearing by the delegate, the Federal Court had regard to the practical implications of the prescription of particular procedures:
The court has no direct knowledge of the resource implications of particular procedures, nor of the resources available to the Department to implement them. Oral hearings by the ultimate decision-makers could be provided for all applicants using the simple artifice of increasing the number of person with appropriate delegations. However, it may be…such a solution would also put the final decision-making responsibility in the hands of more junior and less experienced officers than those who currently hold delegations. In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources.[40]
5.59 There are limits however to the extent to which such considerations can supplant considerations going to the substance and quality of the decision-making process.
5.60 While Kirby P in Johns v Release on Licence Board[41] looked at the financial costs involved in increasing the content of the hearing rule for the Release on Licence Board, he noted that practical issues, such as the staff shortages and accommodation, should not be factors limiting the requirements of procedural fairness.
5.61 Although noting the intention of the Code under the Migration Act to assist delegates in the efficient and speedy resolution of the thousands of visa applications with which they must deal each year, Kirby J in Minister for Immigration and Multicultural Affairs: Ex parte Miah,[42] for example, was not prepared to construe the Act so as to exclude the rules of procedural fairness. In such circumstances, courts are bound to have regard to the rights of the individual rather than broad-based issues of financial policy.
5.62 In commenting on the volume of applications, in its first report in 1977, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19-1978, the Council responded to claims by some agencies that the AD(JR) Act would lead to an opening of the 'flood-gates' for review by noting that if there was a dramatic increase in the number of review applications an exclusion of that area could be made quickly.
5.63 The Council also noted that a high volume of litigation might be seen as evidence that the Act was having a ‘salutary effect in checking the lawfulness which may not otherwise be exposed.’
5.64 In some areas, the Council noted that new legislation could raise difficult questions for decision, resulting in an upsurge in the number of AD(JR) Act challenges. The Council noted that this was followed frequently by a slackening off once the Federal Court’s approach to the legislation begins to emerge.[43]
Discussion point 10
5.65 Undoubtedly, resource considerations are a legitimate concern of government and as such, may have an important impact on the desirable scope of judicial review.
5.66 It seems apparent, moreover, that the executive is best placed to assess the level of resources it can allocate to a particular area of government decision-making. In contrast, judges are not in a position to determine where resources should be provided or how they should be apportioned. Such decisions involve a range of issues and of knowledge.
5.67 In this sense, such issues are polycentric,[44] involving consideration of matters of which a court is unlikely to have knowledge or to be equipped to act upon if it did. As the role of a court is to examine cases on an individual basis, it would seem generally inappropriate for it to involve itself in such broad-based considerations.
5.68 What has emerged from this discussion and discussion of the related issue of abuse of process is that there is a range of factors which may contribute to high review costs in particular areas.
5.69 In the Council's view, there are a number of ways that such concerns could be responded to other than through a reduction of judicial review rights.
New legislation
5.70 As noted by the Council in its first report,[45] the passage of new legislation or amendments to existing legislation may encourage an initial ‘rash’ of cases ‘testing out the waters’. This will undoubtedly lessen as the parameters of the new or amending legislation are established and training and procedures are put in place.
5.71 In such circumstances, it may be considered that the courts have an important interpretative role to play and a role in achieving the consistency of approach referred to in the preceding section: only a court can offer a final and authoritative interpretation of a piece of legislation. Attempts to reduce litigation by legislative means may be regarded as both unnecessary and inappropriate.
Referral of cases by the court
5.72 Failure of the Federal Court in many instances to make adequate use of its discretionary power under paragraph 10(2)(b)(ii) of the AD(JR) Act to refuse an application where other ‘adequate’ avenues of review exist can, for instance, place pressures on the system.[46]
Standards of primary decision-making
5.73 Poor quality decision-making may also, of course, encourage applicants to circumvent internal or tribunal review procedures in favour of judicial review. Again, the answer is clearly not to limit the scope of judicial review, but to address decision-making problems at agency and tribunal levels.
5.74 In some cases, strategies might be needed to improve the standard of primary decision-making. In other areas, extended and improved alternative review mechanisms might need to be developed.
Adequate alternatives
5.75 Where adequate alternative remedies are not in place, they might need to be established. Where such remedies are in place, the courts might need to be encouraged to refer cases to them. In some cases, a combination of all or some of these options might apply.
5.76 Where an ‘adequate’ alternative review structure is provided, it is arguable that legislative limits on judicial review are justified. However, where the provision of adequate alternative remedies is accompanied by active referral by the courts of appropriate cases to the alternative system, then it is equally arguable that legislative limitation of judicial review is unnecessary.
5.77 In the context of adequate alternative remedies however, one of the features of the constitutional separation of powers doctrine is that tribunals can not make final binding and authoritative decisions. While this system prevails, use of the courts for judicial review is inevitable (and of discernible value).
Access to legal aid/ avoidance of undesirable consequences
5.78 Other factors contributing to large volumes of judicial review cases might include easy access to legal aid as in the veterans’ entitlements area, or the desire to exploit the legal process to avoid an undesirable consequence, such as deportation, in the migration or criminal areas.
5.79 The first of these examples, high levels of legal aid, is an issue which the government is best placed to address, though not, it is submitted, through limitations on the scope of judicial review.
5.80 Response to the second example might include seeking to reduce the open-textured nature of some legislative decision-making provisions and (with greater difficulty), international conventions.
5.81 Relevantly, in the taxation area where there might also be advantage in delay, measures have been taken legislatively to replace the judicial review regime with a comprehensive tiered review scheme capped ultimately, in most cases, with a right of appeal.
5.82 If the conclusion is reached that there is no other way to bring costs into line than by imposing restrictions on judicial review, in addressing the issue, the preferable approach may be for parliament to use a fine-tuned legislative instrument, for example, by specifically identifying which decisions are reviewable.
5.83 If it is possible to retain some elements of review having regard to the potential of some grounds of review to attract greater cost responses than others,[47] then, arguably, this distinction should be made. In any event, to maintain government accountability and to ensure the protection of individual rights, judicial review should only be replaced if there is an adequate alternative review mechanism: the rights of the individual applicant should not be manifestly reduced. Consideration later in the discussion paper with regard to adequate alternative remedies is relevant in this regard.
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Do you agree/not agree with these views? Are there other relevant considerations? Please elaborate. |
5.84 Policy has been described as ‘the process by which governments translate their political vision into programs and actions to deliver “outcomes” – the desired outcomes in the real world.’[48] Such policy, often referred to as ‘government policy’, may be expressed, though not always, by way of government or ministerial statement, and has an expansive rather than a limited application.[49]
5.85 At another level, policy may be employed as a rule or guide for deciding when and what action may or may not be taken in the exercise of a statutory discretion.[50] This sort of policy may take a variety of forms – from official departmental publications providing statements of objectives to detailed guidelines or instructions to unofficial expressions of opinion by public servants. In the absence of any such statement or policy, a course of action may also be developed and followed over a period of time. Many such “policies” do not have ministerial or government endorsement, may not be readily categorised in terms of broad-based government policy and may amount to little more than statements of objective, or opinions offered by individual agency officials as to what legislation means.[51]
The importance of policy in government decision-making
5.86 Development of government policy is commonly regarded as a function of government ‘for which it is publicly and politically accountable, and an elected government can rightfully expect that its policies will be carried into effect by the executive arm of government’.[52]
5.87 The importance attached by the government to the awareness and responsiveness of administrators to government policy is reflected in the Australian Public Service Values set out in the Public Service Act 1999, which require that:
the APS [be] responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government’s policies and programs.[53]
5.88 The prominence afforded to policy is also reflected in the imposition on directors of statutory authorities and government companies by the Commonwealth Authorities and Companies Act 1997 of an obligation to ensure that any ‘general policies of the Commonwealth Government’ notified in writing by a Minister to the directors ‘are carried out’ in relation to’ the authority or company.[54]
5.89 A number of other Commonwealth statutes also encourage administrative regard to government policy, some providing for Ministerial direction where in the performance of its functions and the exercise of its powers, a body is ‘in conflict with major government policies’.[55] Other legislation requires compliance with policies of the Commonwealth Government of which written notice is given.[56]
5.90 Under section 78AB of the Income Tax Assessment Act 1936, in considering whether to give a direction for the registration of a certified body on the Register of Environmental Organisations, the Environment Minister and the Treasurer are ‘required to take into account ‘the policies and budgetary priorities of the Commonwealth Government’. Similarly, in making a decision under Division 396 (Land Transport Facilities Borrowing), the Minister for Transport and Regional Development is to take account of, amongst other things, ‘the extent to which the project conforms to Commonwealth and State government policies and planning requirements’.[57]
5.91 The way in which they handle policy in their decision-making processes represents a fundamental distinction between primary decision-makers, tribunals and courts. Policy is often an integral part of administrative decision-making. It may mean that a decision is correct notwithstanding a mistake of fact or an apprehension of the possibility of a fact existing. Even though not included in a statute or regulation, it may dictate what is material in a particular case. It may also reverse the onus of proof for example.[58]
Policy decisions
5.92 Most administrative decisions will have at their root some policy pronouncement of government. Such elements usually overlap with other matters such as the view taken by the decision-maker of the law or upon factual matters or the conduct of the decision-maker vis à vis the applicant.
In practice it would be extremely difficult for the courts to isolate and to ignore policy elements whilst otherwise examining decisions for substantive unfairness and unreasonableness.[59]
5.93 There are some decisions, however, where policy is a critical element, either because there is no pre-existing policy, or where the subject matter of the decision is, in itself, reflective of high government policy. Some decisions, such as those relating to international relations and national security may, by virtue of their nature, be considered to relate to higher policy issues than others.[60]
Exceptions to judicial review of certain sorts of policy decisions
5.94 In the reports of both the Kerr[61] and Ellicott[62] Committees, exceptions to the jurisdiction of the proposed Administrative Court were contemplated. Both committees recommended that policy decisions of government ministers be excluded from judicial review,[63] the Ellicott Committee observing that:
There may…be some discretions exercised by Ministers which ought not be subjected to a general system of judicial review because their policy content or other special reasons make this undesirable in the public interest. In some cases it will be found that procedures for review and perhaps judicial review, are already available. Discretions which, in our view, might be excluded would include some relating to defence, national security, relations with other countries, criminal investigation, the administration of justice and the public service.[64]
5.95 The limitations referred to by the Committee appear to reflect those formerly associated with the exercise of prerogative power and more recently, with court consideration of whether or not a matter before it is justiciable, that is to say, whether or not it is a matter upon which the court can, or considers it appropriate that it should adjudicate.
5.96 The words of Brennan J of the United States Supreme Court in the decision of Baker v Carr are pertinent in this regard:
…the courts are not fit instruments of decisions where what is essentially at stake is the composition of those large contests of policy traditionally fought out in non-judicial forums, by which governments and the actions of governments are made and unmade.[65]
5.97 In summary, such decisions commonly include:
· decisions relating to foreign affairs[66] (such as a decision to implement[67] or to enter into a treaty)[68]
· decisions relating to national security
· decisions to prosecute or not to prosecute
· decisions relating to granting pardons to convicted persons;[69] and
· decisions to appoint judicial officers.[70]
5.98 In its 1999 publication What Decisions Should be Subject to Merits Review? the Council also added to this grouping decisions affecting the Australian economy. Included in this category were decisions of such fundamental significance as determining interest rates; floating the dollar; allocation of money to one program over another; and, setting foreign exchange rates. However, it was considered that a decision of a Minister to approve a body corporate as a stock exchange may not be of sufficiently high political content to warrant exclusion from judicial review.[71]
5.99 Similarly with decisions in relation to matters of defence. In 1989 in its 32nd report, Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act, the Council took the view that though they might well be susceptible to review under the AD(JR) Act, decisions deriving from the command power in section 7 of the Defence Act 1908 might well not be justiciable.
5.100 It has been said that the underlying rationale for the exemption from review of decisions in these areas rests with essentially practical considerations, such as the importance of speaking with a single voice in relation to matters of international relations, [72] and in achieving finality and immediate obedience in relation to the declaration or cessation of war or the deployment of forces.[73]
5.101 Under Schedule I to the AD(JR) Act there are also exclusions from review of a range of legislation coming broadly within these subject groupings.
5.102 Policy may also be political in the sense of being controversial: however, as observed by Kirby J:
…the mere involvement of a political or controversial question does not mean that a court lacks jurisdiction, that a controversy is not a ‘matter’ for the purpose of the Constitution, that a cause of action lacks viability or that the issue tendered is non-justiciable.[74]
5.103 A distinction may also be drawn between a decision that is ‘essentially political’ and one that is ‘policy driven’.[75]
5.104 As also noted by Dixon J at a somewhat earlier date, noting that exemptions for policy can be overstated:
The Constitution is a political instrument. It deals with government and governmental powers. The statement is, therefore, easy to make though it has special plausibility. But it is really meaningless. It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution can be so described.[76]
5.105 The decision in R v Secretary of State for the Home Department, ex parte Bentley,[77] is authority for the proposition that the courts cannot simply be ousted by the high policy nature of a decision:
The question is simply whether the nature and subject matter of the decision is amenable to the judicial process. Are the courts qualified to deal with the matter or does the decision involve such questions of policy that they should not intrude because they are ill equipped to do so?…If, for example, it was clear that the Home Secretary had refused to pardon someone solely on the grounds of their sex, race or religion, the courts would be expected to interfere and, in our judgment, would be entitled to do so.[78]
5.106 It has also been recognised that:
The question in a particular case may not seriously implicate considerations of finality – e.g. a public program of importance (rent control) yet not central to the emergency effort. Further, clearly definable criteria for decision [sic] may be available. In such case the political question barrier falls away: ‘[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared…[It can] inquire into whether the exigency still existed upon which the continued operation of the law depended.’[79]
5.107 This approach appears equally applicable in Australia. In Re Ditfort[80] for example, Gummow J reached the conclusion that it is incorrect to assume that every case touching on foreign affairs lies beyond judicial consideration.
5.108 Moreover, where government is administrating schemes within statutory limits set by parliament, the courts will enquire whether government is doing properly what it has authority to do.[81]
Circumstances of the individual
5.109 In some situations, policy decisions may have a particular import for certain individuals. In those situations:
Despite the courts’ general reluctance to review policy, particularly at an abstract level, there are cases where the critical question is whether the established policy should be applied to an individual in particular circumstances or what weight should be given to policy, along with other relevant factors. Judicial review may be available in some of these cases. In some instances where the critical question relates to the application of policy, it is possible not to apply the policy without prejudicing the objects which the policy is designed to achieve.[82]
5.110 Pronouncements of the Court in relation to the treatment of cabinet decisions are also relevant and take the concept of exception a degree further. For instance, in O’Shea’s case, while basing his decision on procedural fairness, Mason CJ recognised that cabinet may be involved in two different types of decisions – political policy decisions not open to judicial review and decisions more closely related to justice to the individual than with political, social and economic concerns.[83]
5.111 According to Sir Anthony Mason in his reasoning in this case:
I thought that although Cabinet is primarily a political institution concerned with political, economic and social concerns, it might be called upon to decide questions more closely concerned with justice to the individual when a duty to act fairly could arise.[84]
5.112 The courts have also sought to identify cases in which there is a legitimate expectation of some form of redress. In FAI v Winneke[85] for example, it was held that the decision of the government, including the Governor acting on the advice of Ministers concerning a particular company, was reviewable where it dealt with matters that might be subject to a legitimate expectation. Such an expectation would arise from the nature of the decision: it might also arise from the existence of a regular practice which the affected person might reasonably expect to continue.[86]
5.113 However:
The considerations by reference to which the reasonableness of a policy may be determined are rarely judicially manageable. For this reason, the court is slow to intervene when injustice has been done to individual rights by what may appear to be an unjust policy.[87]
5.114 In conclusion, it has been said that:
On the authorities, the true test may well be: is the particular function appropriate for a court in the sense that the issues can be resolved by the application of legal principles and judicially manageable criteria and standards? If so, some functions involving policy may be inappropriate, others not so. If policy is to be dealt with according to judicial method, informing the formulation of principles to be applied to the case in hand, that is one thing, but if the court is required to deal with policy at large, then the function is non-judicial.[88]
Previous Council consideration
5.115 In response to arguments that decisions should be excluded from review on the basis of their policy nature, the Council noted in its first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions Under Section 19, - 1978 that:
The Court is not concerned with Government policy except to the extent to which it produces an unlawful administrative decision. In this respect the powers of the Federal Court under the Act are no different from those of the High Court. Accordingly, the presence of large elements of policy in the making of a class of decision is not a ground for exclusion from the Act.[89]
5.116 In its more recent publication What Decisions Should be Subject to Merits Review? the Council restated this view:
The fact that a decision-making power may be exercised by reference to a policy does not, in itself, exclude from review a decision made under the power.[90]
5.117 An exemption from merits review is recognised however for what are categorised as decisions with a high political content:
This exception relates to decisions that involve the consideration of issues of the highest consequence to the Government. Only rarely will decision-making powers fall within this exception, and it is unlikely that a decision-making power not personally vested in a Minister would suffice.[91]
5.118 The Council noted though, that even where the high political content exception applies, in some areas, it will only apply to a few of the total number of decisions made under a decision-making power.[92] The Council therefore considered it preferable for a decision made under such a power to be subject to merits review with an exclusion mechanism in place to cover those decisions falling within the exception.[93]
Discussion point 11
General treatment
5.119 It is suggested that in the majority of cases where ‘low level’ policy is involved, there is no difficulty in a court reviewing a decision made in the application of pre-existing policy. Where the decision-maker has misconstrued the policy, the decision may be set aside for failure to take account of relevant circumstances, that is, the policy.
5.120 The court may also consider whether in the application of policy, the decision-maker has had regard to the facts of the particular case, or has reached an unreasonable conclusion or has altered the policy to dictate the outcome rather than considering the special or particular circumstances of the case.
5.121 In a case where an executive decision-maker has specified criteria in a policy statement which is consistent with the statute and is not unreasonable, a decision ignoring the criteria will be prima facie bad. Similarly, a decision which fails in a particular case to recognise that policy criteria are satisfied may be considered unreasonable.
5.122 Where there is no existing policy, it is largely for the decision-maker to determine which matters he or she considers material.[94] Where the decision is a one off decision, greater restraint should be exercised, but there seems no basis, beyond that, to seek to limit judicial review.
High policy
5.123 In areas of high policy, different considerations apply. While high policy may be a factor justifying exclusion of merits review in some cases[95] different considerations would apply in relation to judicial review. It may not be appropriate, in view of their subjectivity and quite often, their polycentricity, for a court to undertake judicial review of such decisions on the basis of grounds such as unreasonableness or irrelevant considerations. Where an application is made to the court on the basis of an error of law, however, or an abuse of power, there would seem no reason to restrict judicial review. Notwithstanding the ‘high policy’ element, it is still appropriate that the repository of that power (i.e. the decision-maker) exercise that power according to the law.
5.124 In those few cases where judicial review may not be appropriate, it may be argued that adoption of judicial concepts of justiciability and deference are more appropriate ways to achieve the correct balance between policy development and judicial review than the exclusion of certain policy decisions from the scope of judicial review by way of legislation.
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Do you agree/not agree with these views? Are there other relevant considerations? Please elaborate. |
What are decisions related to the administration of justice?
5.125 Decisions falling within this category include those relating to investigation, arrest, prosecution, bail, summary trial, committal, the filing of a nolle prosequi, indictment, appeal and parole.
5.126 Opinion appears to be divided on the interaction of judicial review with the decision-making processes of the criminal justice system. Some point to the beneficial influence on the latter system of concepts of reasonableness and accountability. Others have raised concern at the encroachment of judicial review on the area of criminal administration and expertise. [96]
5.127 Exemptions currently exist in Schedule 1 to the AD(JR) Act for:
(r) decisions under the Extradition Act 1988;
(w) decisions under the Witness Protection Act 1994;
(x) decisions under subsection 60A(2B) of the Australian Federal Police Act 1979;
(xa) decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory.
5.128 Arguments advanced in 1978 for exclusion of such decisions from review at the time of the writing of the Council’s first report, Administrative Decisions (Judicial Review) Act 1977, Exclusions under Section 19, included:
· the Act may be used to hamper and frustrate the proper investigation and prosecution of offences
· the obligation to give reasons may necessitate the premature disclosure of information to the prejudice of an investigation
· there are adequate existing safeguards established to strike the right balance between the law enforcement agencies and the citizen
· it is inappropriate to subject law enforcement officers who are engaged in criminal investigation and prosecution to the obligations of the Act, particularly the obligation to give reasons; and
· most of the decisions lead to the matter being brought before a court and there are extensive appellate processes.[97]
5.129 With respect to exemptions from judicial review provided for in the Financial Transactions Reports Act 1993 and the Witness Protection Act 1994, the Government was motivated, respectively, by concerns that criminal investigations could be compromised, and for maintenance of the integrity of the program. In the context of the Witness Protection Act 1994, in responding to inquiries from the Scrutiny of Bills Committee, the then Minister for Justice said:
…the decision to exclude the operation of the AD(JR) Act was not taken lightly. It was done only after ensuring that there were internal review mechanisms…[the exemptions] are all designed to protect the integrity of the [program]. The importance of ensuring the safety of witnesses, their relatives and the AFP officers means that information must be subject to strict safeguards.[98]
5.130 The Committee accepted this argument.
5.131 More recently, arguments for and against exclusions in this area have arisen in the context of the Jurisdiction of Courts Legislation Amendment Act 2000. Schedule 2 to this Act:
· removes the right of the defendant to challenge the decision to prosecute under both the AD(JR) Act, the Judiciary Act 1903 and the Corporations Act 1989
· suppresses rights to review of other pre-trial decisions once the prosecution is brought to court, and until the trial and any subsequent appeals are completed;[99] and
· channels much of the remaining jurisdiction from the Federal to State and Territory courts.[100]
5.132 The reason for the amendments, according to the Attorney-General in his second reading speech, was ‘to avoid the use of unmeritorious delaying tactics in the criminal justice process by removing the collateral access of defendants to federal administrative law procedures and remedies’.[101] In his response to the Senate Scrutiny of Bills Committee, the Attorney-General suggested that judicial review was ‘frequently’ a stalling tactic.[102] He also noted in debate of the Bill that ‘collateral attacks’ generally lack merit and are ‘invariably used only by defendants with deep pockets’.[103]
5.133 Other arguments for the exclusion from review of such decisions included:
· to avoid fragmentation of proceedings between courts at different tiers of the federation
· to reduce cost and delay, and the consequential damage caused by delay to the prosecution case
· that defendants still have recourse to relief by way of section 75(v) of the Constitution and to review either side of the prosecution proceedings
· that the criminal courts themselves provide safeguards through the discretion to deny admissibility to prejudicial evidence, the grant of permanent stays to prevent an abuse of process and the appeal system; and
· that the amendments place defendants in Commonwealth prosecutions in essentially the same situation as their State counterparts.
5.134 The position of the courts is that they will only ordinarily interfere with the processes of criminal justice by way of judicial review in exceptional circumstances.[104] This applies equally to committal proceedings, issuing a warrant, deciding to prosecute or arresting a suspect. In Barton v The Queen[105] for instance, the High Court decided that an exercise by the Attorney-General of the power to present an ex officio indictment is non justiciable. The court also noted that there was well established English authority that the prerogative powers to enter a nolle prosequi and to grant or refuse a fiat in connection with a relator action, are not justiciable. Clearly, policy considerations support this view. It would be undesirable for the courts to become closely involved in the question whether a prosecution should be commenced, when ultimately, it would be the task of the courts to determine the accused’s guilt or innocence.
5.135 However, in Barton’s case, Gibbs ACJ and Mason J held that where there was a suggestion of abuse of process, the court would stay a prosecution brought without reasonable ground, at least until a preliminary examination took place – where antecedent committal proceedings were dispensed with, a trial in their absence ‘unless justified on strong and powerful grounds, must necessarily be considered unfair’.[106] The courts should not abdicate to the Attorney-General or the Crown prosecutor their function of deciding ‘where on balance the interests of justice lie’.[107]